Bangalore District Court
State Of Karnataka By; vs Smt.Suma W/O Mahadeva on 14 September, 2015
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY. (CCH-69)
Dated this the 14th day of September, 2015
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSIONS CASE No.337/2014
COMPLAINANT : State of Karnataka by;
Banashankari Police Station,
Bengaluru City.
(By Learned Public Prosecutor)
- Vs -
ACCUSED: 1. Smt.Suma W/o Mahadeva,
Aged about 45 years,
2. Mahadeva S/o Late.Madaiah,
Aged about 52 years,
3. Smt.Sharadamma
W/o Late.Madaiah,
Aged about 70 years,
All are residing at No.18/10, 22nd Cross,
Mariyappanabavi Circle, K.P.Agrahara,
Bengaluru - 23.
(By Sri.K.B.K.Swamy, Advocate)
1. Date of commission of offence 09-03-2013
2. Date of report of occurrence 10-03-2013
3. Date of commencement of evidence 27-10-2014
4. Date of closing of evidence 08-07-2015
2 S.C.337/2014
5. Name of the complainant Purushotham
9. Offences complained of Sec.306 r/w 34 of
I.P.C.
10. Opinion of the Judge As per the final
order
11. Order of sentence Offence not
proved
JUDGMENT
This case is committed by the V Addl.Chief Metropolitan Magistrate Court, Bengaluru City, to the Hon'ble Prl. City Civil and Sessions Court, Bengaluru, on the ground that offences punishable under Sec.306 of I.P.C. is exclusively triable by the Court of Sessions.
2. The Police Sub-Inspector, K.P.Agrahara Police Station has filed charge sheet against accused No.1 to 3 for the offence punishable under Sec.306 of I.P.C. arising out of K.P.Agrahara Police Station in Crime No.97/2013.
3. The brief facts of the prosecution case are as under:
It is the case of Prosecution that, accused No.1 to 3 were having financial transactions with the deceased-Mahesha one month earlier to 09-03-2013. Accused No.1-Smt.Suma has obtained loan of Rs.5,00,000/- from CW.2-Ramakrishna for the marriage of her daughter and agreed to repay the said loan 3 S.C.337/2014 after the marriage of her daughter. Accused No.1 has not repaid the loan availed even after 20 days of her daughter's marriage, so CW.2 on 09-03-2013 at 9.30 a.m. called accused No.1 to 3 to his house and asked them to repay the loan availed for daughter's marriage of accused No.1, for that accused told that now they are not having money and they will repay the amount in small installments, quarreled and went away. The son of CW.2 deceased-Mahesha saying that they want repayment of loan amount immediately and gone along with the accused to their house and asked the accused for repayment of loan immediately, for that accused told the deceased-Mahesha that they will not repay the loan amount 'what he wants to do, do it and otherwise he has to take poison and die' and instigated Mahesha for committing suicide and for that deceased-Mahesha has taken bedbug poison in the house of accused and came back to his house and told the said fact to his family members and started vomiting, so deceased has been shifted to Hospital on 09-03-2013 itself and the deceased while taking treatment in the Hospital died on 11-03-2013 at 9.30 a.m. Thereby the accused have abated the deceased-
Mahesha to commit suicide and thereby committed the offence under Sec.306 of I.P.C.
4 S.C.337/2014
3(a) CW.13 who is the Asst. Sub-Inspector of K.P.Agrahara Police Station, on 11-03-2013 at 7.40 a.m., was in the Police Station, complainant-Purushothama came to the Police Station and lodged complaint stating that his brother due to financial matters of family, depressed and taken poison and died. CW.13 has obtained the complaint and registered the same in UDR No.7/2013 and submitted the FIR to the Tahasildar (North), Bengaluru. Thereafter, CW.13 visited Victoria Hospital and drawn the Inquest Mahazar of the dead body of Mahesha from 8.30 a.m. to 10.00 a.m. in presence of Panchas. On the same day, CW.13 has recorded the statements of CW.3, 6, 7 and thereafter CW.13 has sent the dead body for Postmortem. After Postmortem, CW.13 has handed-over the dead body to the relatives of the deceased. Thereafter, CW.13 has sent the Inquest Mahazar to Tahasildar (North), Bengaluru.
3(b) CW.16 who is the Police Sub-Inspector of K.P.Agrahara Police Station on 01-04-2013 at 6.30 p.m. in the Police Station, complainant came to the Police Station and lodged the complaint, CW.16 has obtained the same and registered the same in Crime No.97/2013 and submitted FIR to the court. On 02-04-2013, CW.16 has visited the spot, called 5 S.C.337/2014 CW.8 and 9-Panchas and drawn the Spot Mahazar on the place shown by the complainant in presence of Panchas. On 07-04- 2013, CW.16 has recorded the statements of CW.2, 3, 4 and 5. On 17-04-2013, CW.16 has brought the viscera from the Victoria Hospital belongs to the deceased, on the same day CW.16 has sent the viscera for examination to the FSL, Madiwala, Bengaluru. On 17-05-2013, accused No.2 and 3 obtained the anticipatory bail and appeared before CW.16, CW.16 has arrested them and released them on bail. On 17- 06-2013 accused No.1 has obtained the anticipatory bail from the Hon'ble High Court of Karnataka, Bengaluru and appeared before CW.16, CW.16 has arrested her and released her on bail. Thereafter, CW.16 has included the file of UDR No.7/2013 in this case. On 28-10-2013, CW.16 has given requisition for the court for including CW.16 in the witness list and thereafter as the investigation is completed, CW.16 has filed the charge- sheet.
4. After filing the charge-sheet by the Investigating Officer, V Addl.Chief Metropolitan Magistrate Court, Bengaluru, has taken cognizance and registered the case in C.C.12524/2013, thereafter the V Addl.Chief Metropolitan Magistrate Court, Bengaluru, has secured the presence of the 6 S.C.337/2014 accused and furnished charge-sheet copies to them under Sec.207 of Cr.P.C. thereafter V Addl.Chief Metropolitan Magistrate Court, Bengaluru has committed the case before Prl. City Civil & Sessions Judge Court, Bangalore and the same was numbered as S.C.337/2014 and made over to this court for disposal according to law as the offence under Sec.306 of I.P.C. is exclusively triable by the Sessions Court.
5. After the receipt of the papers, this court has secured the presence of accused No.1 to 3 and enlarged them on bail. Thereafter, heard the learned counsel for the accused and learned Public Prosecutor for state on framing the charge. The charge under Sec.240 of Cr.P.C. framed against accused for the offences under Sec.306 of IPC and read-over the same to the accused in the open court. Accused pleaded not guilty and claims to be tried. Thereafter, Prosecution has called upon to prove the guilt of the accused by examining the Prosecution witnesses.
6. Prosecution in order to prove the guilt of the accused examined 11 witnesses as PW.1 to 11, got marked 9 documents as Ex.P1 to 9 and closed their side. During the cross-examination of prosecution witnesses two documents came to be marked on behalf of the accused as Ex.D1 and 2. 7 S.C.337/2014 Thereafter, accused are examined under Sec.313 of Cr.P.C., to enable them to explain the incriminating circumstances appearing in the Prosecution evidence. Accused denied the statement in toto and further stated that they have no defence evidence. Thereafter, case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and the learned Public Prosecutor in length.
8. The following points arise for my determination:
1. Whether the prosecution proves beyond all reasonable doubt prove that accused No.1 to 3 having financial transactions with the deceased-Mahesha one month earlier to 09-03-2013, accused No.1-
Smt.Suma has obtained loan of Rs.5,00,000/- from the CW.2- Ramakrishna for the marriage of her daughter and agreed to repay the said loan, after the marriage accused No.1 has not repaid the loan availed even after 20 days of her daughter's marriage, so CW.2 on 09-03-2013 at 9.30 a.m., called accused No.1 to 3 to his house and asked them to repay the loan availed for daughter's marriage of accused No.1, for that accused told that now they are not having money, they will repay the amount in small installments, quarreled and went away, 8 S.C.337/2014 son of CW.2 deceased-Mahesha saying that he want repayment of loan immediately, gone along with the accused to their house and asked the accused for repayment of loan immediately, for that accused told that they will not repay the loan amount 'whatever he want to do, do it otherwise taken poison and die' and instigated the deceased-Mahesha for committing suicide and due to instigation of the accused, deceased-Mahesha has taken bedbug poison and died and thereby committed offence punishable under Sec.306 r/w 34 of I.P.C.?
2. What Order?
9. My findings on the above points are as follows:
POINT No.1 : In the Negative;
POINT No.2 : As per final order
for the following;
REASONS
10. POINT NO.1: It is the case of the prosecution that accused have committed the offence under Sec.306 r/w 34 of IPC and in order to prove the guilt of the accused beyond reasonable doubt Prosecution in all examined 11 witnesses and they are; PW.1-Purushotham son of Ramakrishna-complainant, PW.2-Ramakrishna son of Ramaiah-father of deceased 9 S.C.337/2014 Mahesha, PW.3-Smt.Gowramma wife of Ramakrishna-mother of the deceased, PW.4-Smt.Mahalakshmi wife of Siddaiah-sister of CW.2, PW.5-Ravichandra son of Siddaiah-relative of CW.2, PW.6-Siddu.K son of Marigowda-Inquest Mahazar Pancha, PW.7-G.Shivakumaraiah son of G.H.Gangadharappa-Police Sub-
Inspector of K.P.Agrahara, PW.8-Jayaprada son of Jayanna-WPC of K.P.Agrahara Police Station, PW.9-Dr.Dileep Kumar son of Krishnachar-Medical Officer, PW.10-Dr.Gowthan son of Devappa-Scientific Officer, PW.11-Arun Kumar H.B. son of Basavaiah-Police Sub-Inspector.
11. Prosecution in order to prove the guilt of the accused got marked 9 documents and they are; Ex.P1- Complaint, Ex.P2-Spot Mahazar, Ex.P3-Portionof statement of PW.4, Ex.P4-UDR complaint, Ex.P5-Inquest Mahazar, Ex.P6- Intimation given by Police regarding UDR FIR to Tahasildar (North) Bengaluru, Ex.P7-Postmortem Report, Ex.P8-FSL Report, Ex.P9-FIR.
12. During the cross-examination of prosecution witnesses two documents came to be marked on behalf of the accused and they are Ex.D1-Report submitted to Medical Officer along with the dead body for carrying out the Postmortem, 10 S.C.337/2014 Ex.D2-NC Receipt issued by K.P.Agrahara Police Station to accused No.2.
13. Perusal of the complaint which is at Ex.P1 discloses that, incident took-place on 09-03-2013, deceased-Mahesha died on 10-03-2013 at 9.30 p.m., complainant has lodged the complaint on 01-04-2013 at 6.30 p.m. i.e., after 20 days of the alleged incident. In the complaint, complainant has not mentioned the reasons for delay caused in lodging the complaint. Complainant has been examined in this case as PW.1 and PW.1 in his evidence stated that earlier he has lodged UDR complaint as per Ex.P4 on 11-03-2013 and at the time of lodging of the said complaint, his mother was unconscious due to shock of the death of his brother Mahesha, so in the UDR complaint he has not made any allegations against the accused persons regarding abatement of suicide. After conscious returned to his mother, he enquired his mother and after taking full information from his mother he has lodged the complaint as per Ex.P1, so delay was caused in lodging the complaint. The counsel for the accused has cross-examined PW.1 on delay caused in lodging the complaint and PW.1 in his cross- examination admitted that he has not mentioned in Ex.P4- complaint that due to the death of his brother-Mahesha, his 11 S.C.337/2014 mother was shocked and she became unconscious. In the present case prosecution has examined the mother of CW.1 as PW.3 and PW.3 in her cross-examination admitted as under:
«PÉÆÖÃjAiÀiÁ D¸ÀàvÉæAiÀÄ°è £À£Àß ªÀÄUÀ£À ±ÀªÀ EnÖzÀÝ ¸ÀAzÀ¨ÀsðzÀ°è PÉ ¦ CUÀæºÁgÀ ¥ÉǰøÀgÀÄ C°èUÉ §A¢zÀÝgÀÄ ºÁUÀÆ C°è £À£Àß ºÉýPÉ ¸ÀºÀ ªÀiÁrPÉÆAqÀgÀÄ JAzÀgÉ ¸Àj."
14. From the said admission of PW.3 who is the mother of CW.1 it is clear that, on 11-03-2013 when Inquest Mahazar was drawn by ASI of K.P.Agrahara Police who has been cited as CW.13 in this case, mother of complainant was having conscious and she has given statement before CW.13 and CW.13 has recorded her statement. Further in the present case, CW.13 has been examined as PW.7 and PW.7 has also clearly stated that on 11-03-2013 from 8.30 to 10.00 a.m., he has drawn Inquest Mahazar of the dead body of Mahesha at Victoria Hospital Mortuary and at the time of Inquest Mahazar, CW.3 who is the mother of complainant was present and he has recorded her statement and admissions of PW.3 and PW.7 falsifies the case of complainant that his mother was unconscious by hearing the shock of his son's death, so he has not made any allegations against the accused persons in Ex.P4- 12 S.C.337/2014 complaint is unacceptable one. Further PW.1 who is the complainant in his cross-examination admitted as under;
"£Á£ÀÄ ¤¦-1 gÀAvÉ zÀÆgÀÄ ¤ÃqÀĪÀ 2 zÀª¸À À ¥ÀǪÀðzÀ°è 2£Éà DgÉÆæ £À£Àß ªÉÄÃ¯É ºÁUÀÆ £À£Àß PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÀ ªÉÄÃ¯É PÉ ¦ CUÀæºÁgÀ oÁuÉAiÀÄ°è zÀÆgÀÄ ¤ÃrzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw zÀÆgÀÄ ¸À°è¹zÀÝgÀÄ ºÁUÀÆ D «ZÁgÀªÁV ¥ÉǰøÀgÀÄ £ÀªÀÄUÉ oÁuÉUÉ PÀgɹ w¼ÀĪÀ½PÉ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw zÀÆgÀÄ PÉÆnÖzÀÝPÉÌ £ÁªÀÅ ZÀZÉð ªÀiÁr ¤¦-1 ¸À°è¹zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ¸ÀéAiÀÄA ¥ÉæÃgÀuɬÄAzÀ ¤¦-1 gÀAvÉ zÀÆgÀÄ PÉÆqÀ¨ÉÃPÁzÀgÉ CªÀgÀ ªÀÄ£É ¸ÀzÀ¸ÀågÀÄ ZÀZÉð ªÀiÁr zÀÆgÀÄ ¸À°è¹gÀĪÀÅzÁV ºÉüÀÄvÁÛgÉ."
15. PW.1 has denied that accused No.2 has lodged the complaint against his family members and further PW.1 has denied that after PW.1 has lodged the complaint against her family members they have lodged Ex.P1-complaint. PW.1 voluntarily stated that he and his family members have discussed and then lodged the complaint. In the present case, accused have produced the NC Receipt given by K.P.Agrahara Police to them which is at Ex.D2. Ex.D2 discloses that on 29- 03-2013 accused No.2 has lodged the complaint and the Police have registered the same under non-cognizable cases and issued receipt as Ex.D2. Accused have also produced copy of complaint lodged by accused No.2 and Ex.D2 discloses that accused No.2 has lodged the complaint on 29-03-2013 and 13 S.C.337/2014 Ex.P1-complaint is lodged on 01-04-2013 i.e., after N.C. complaint lodged by accused No.2 against the family members of the complainant. The delay caused on the part of the complainant is 20 days delay and the same is not satisfactorily explained. The delay caused is abnormal and the same remained unexplained, so the said delay creates suspicion regarding the incident.
16. Perusal of the FIR which is at Ex.P9 discloses that, Police have submitted FIR to the court on 02-04-2013 at 11.00 a.m. i.e., within 24 hours from the registration of the case, so there is no abnormal delay on the part of the Police in submitting the FIR to the court.
17. Prosecution in order to prove the guilt of the accused beyond reasonable doubt, examined complainant as PW.1 and PW.1 in his evidence stated that he know the accused, the house of accused is in front of his house, accused is his distant relative. On 09-03-2013, his elder brother Mahesha has taken bedbug poison and they have admitted him to Agrahara Dasarahalli Madhu Nursing Home thereafter he has been shifted to Shanubhog Hospital. At Shanubhog Hospital his brother died on 10-03-2013 at 9.30 to 10.00 p.m. Further this witness has stated that, accused No.2 is the husband of 14 S.C.337/2014 accused No.1, accused No.3 is the elder sister of accused No.2. Two years earlier to the death of his brother Mahesha, he was having finance business. 45 days earlier to the date of death his brother Mahesha, accused No.1 came to his and me and his brother Mahesha and his mother-CW.3 and told them that her daughter's marriage is there and she want hand loan of Rs.5 lakhs and requested his brother and mother to pay the hand loan of Rs.5 lakhs. His brother and mother told accused No.1 that it is not possible for them to advance the loan. For that accused No.1 told his mother and brother that if they refuse to give the loan, the marriage of her daughter will stop and hearing the same his mother and brother have given Rs.5 lakhs which they have kept for his sister Mala's marriage. Accused No.1 assured that she will repay the said amount within two months and taken the amount. After the marriage of the daughter of accused No.1, accused No.1 has not repaid the hand loan, for that his mother and brother called accused No.1 to their house and told her to repay the hand loan paid by them and for that accused No.1 told that she is not having money and she will return the money in installments. Further this witness has stated that accused No.1 abused his mother in filthy language and went away to her house, his brother 15 S.C.337/2014 followed accused No.1 and came to her house and told accused No.1 that they want repayment of loan immediately, they have not repaid the money so his brother came to his house and told them that accused No.1 told that they will not repay the money and all the accused told him to take poison and die. Thereafter accused No.1 talked on cell phones with his brother and his brother has also called accused No.1 and talked with her in the mobile phone, accused No.1 told that she will not repay the money and on that day at 2.30 p.m., his brother again went to the house of accused No.1 and at that time also accused have abused his brother and told that he has to take poison and die, his brother told them that if they will not repay the money he will take poison and die and for that accused No.1 has brought bedbug poison from her house and given to his brother and told to die, if he dies they can save Rs.5 lakhs and all the accused have instigated his brother for taking the poison and his brother has taken the poison and came to his house and told that as the accused have instigated him to take poison, he has taken the poison and they have taken him to the Hospital and while taking treatment his brother died. Further this witness has stated that his elder brother and accused No.1 were having illegitimate relationship since two years earlier to the death of 16 S.C.337/2014 his brother. Further this witness has stated that as accused No.2 and 3 came to know regarding the illegitimate relationship between his brother and accused No.1, accused have instigated his brother for taking poison. Further this witness has stated that, he has lodged complaint before the Police on 01-04-2013 and after he lodged the complaint, Police have came to the spot and he has shown the spot to the Police and Police have drawn Mahazar as per Ex.P2. Further this witness has stated that, at the time of death of his brother, his mother was shocked so he has not lodged the complaint against the accused persons immediately after the death of his brother. Further this witness has stated that, at the time of death of his brother he was not knowing the real reason for the death of his brother, so he has given complaint as per Ex.P4 and the same was registered in UDR No.7/2013 and identified the UDR complaint as Ex.P4. The counsel for the accused has cross-examined this witness has in the cross-examination this witness admitted that, they are not having any documentary evidence to show that his brother and mother have advanced loan of Rs.5 lakhs to accused No.1. Further this witness has admitted that he has gone through Ex.P1 and Ex.P4-complaints and thereafter he has signed on the said complaints. Further this witness has 17 S.C.337/2014 admitted that, earlier to the death of his brother his family was having his income and his father's income and except that his family was not having any other income. Further this witness has admitted that his father is working as a Watchmen earning Rs.5,000 to 6,000/- p.m. and he is working in the Garments and he is getting Rs.10,000/- p.m. Further this witness has admitted that, they are staying at rented house and except the income of his father and his income, his family is not having any other income. Further this witness in his cross- examination admitted that, at the time of lodging the complaint as per Ex.P1, they have discussed regarding the same and then he has lodged the complaint. Further this witness has admitted that, in Ex.P1 he has not recited that as his mother was unconscious after his brother died, so there was delay in lodging the complaint. Further this witness has also admitted that earlier to the death of his brother, his brother has attempted to commit suicide 2-3 times. Further this witness has admitted that after 20 days of the death of his brother, he, his father, his mother have discussed and thereafter they have lodged the complaint as per Ex.P1. This witness has given contrary statement to that of prosecution case and stated that accused No.1 alone came to their house and his brother and 18 S.C.337/2014 mother insisted her to repay the amount, whereas it is the case of prosecution that on 09-03-2013 all the accused came to the house of complainant.
18. Prosecution examined PW.2 and PW.2 is the father of deceased and he in his evidence stated that, deceased Mahesha is his son, he know accused No.1 to 3. Accused are his distant relatives and their house is in front of his house, his son Mahesha died 1½ years earlier to his evidence. Accused No.1 for the marriage of her daughter has availed loan of Rs.5 lakhs from his son and she has not repaid the loan. His son told the accused if they refuse to repay the loan, he will take poison and die, for that accused told his son that take poison and die, for that his son has taken tablet and he has been admitted to the Hospital and his son died and as accused No.1 to 3 have cheated his son, his son died. Further this witness has stated that his son Mahesha always was staying in the house of accused No.3. Prosecution treated this witness hostile and cross-examined him and in the cross-examination this witness has admitted the case of prosecution. This witness in the examination-in-chief has given contrary evidence to that of prosecution case and the said contradictions are material one. This witness has been cross-examined by the counsel for the 19 S.C.337/2014 accused and in the cross-examination this witness has admitted that the family of accused No.2 is rich than his family. Further this witness has admitted that they are not having any documentary evidence to show that his son Mahesha was doing finance business. Further this witness has stated that he is not knowing on which date, month and year his son has given Rs.5 lakhs to accused No.1. Further this witness has stated that, they have not issued any legal Notice to the accused persons for calling them to repay the loan amount. Further this witness has admitted that, on the death of his son, complainant went to K.P.Agrahara Police Station and lodged the complaint and at the time of lodging the complaint, his son enquired him, his wife and his daughters and thereafter he has lodged the complaint. Complainant in his evidence stated that, his mother was unconscious after the death of his son Mahesha, so he was not knowing the cause of death, so there is a delay for lodging the complaint which is contrary to the evidence of complainant, so the delay caused on the part of the complainant in lodging the complaint remained unexplained. The version of the complainant that as his mother was unconscious after hearing the death of his son, so he was not knowing the reason of 20 S.C.337/2014 death of his brother, so he has not mentioned the cause of death in Ex.P4-complaint, is unacceptable one.
19. Prosecution examined PW.3. PW.3 in her evidence stated that, CW.2 is her husband, CW.1 is her son, her another son's name is Mahesha. Further this witness has stated that her son was doing finance during his lifetime. Complainant was working in the Garments, she know accused No.1 to 3, accused are his distant relatives. Accused are residing in front of her house. Further this witness has stated that, during the lifetime of his son-Mahesha, he use to go to the house of accused No.1. 20-30 days earlier to the death of her son Mahesha, the marriage of the daughter of accused No.1 was fixed and accused No.1 came to her house and requested for hand loan of Rs.5 lakhs and they have kept Rs.5 lakhs for their daughter's marriage and they have paid Rs.5 lakhs to the accused No.1 and accused no.1 told that she will return the amount within 20 days. Accused No.1 has not returned the amount even after 20 days of the marriage of her daughter, so they asked accused No.1 to return the amount and for that accused No.1 told that she is not having money and they will repay the amount in installments. Further this witness has stated that her son talked with accused No.1 for two hours and thereafter her son 21 S.C.337/2014 Mahesha went to the house of accused and requested the accused persons to repay the amount and the accused persons have quarreled with her son Mahesha, accused told that they are not having money and instigated his son to die and his son has taken bedbug poison and came to their house at 3.00 p.m. and started vomiting, he and complainant taken her son Mahesha to Hospital and while taking the treatment in the hospital her son died. Accused persons have instigated her son for taking bedbug poison and due to instigation, her son died. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that when the dead body of her son was shifted to Victoria Hospital, she came to Victoria Hospital, there Police have recorded her statement. CW.1 has stated that after hearing the death of Mahesha this witness fell unconscious so he has not mentioned the cause of death of Mahesha in Ex.P4-complaint, whereas this witness herself has admitted that she was conscious when Inquest Mahazar of the dead body of Mahesha was drawn. Further this witness has admitted that the accused have not executed any documents for taking Rs.5 lakhs from them. Accused have specifically denied that, accused No.1 has taken Rs.5 lakhs from the family of complainant for the 22 S.C.337/2014 daughter's marriage of accused No.1 and if really the accused No.1 has taken the loan of Rs.5 lakhs from the family of complainant, this witness and her son Mahesha ought to have taken some documents. Further this witness has stated that her son Mahesha has not called any Panchayath when accused have refused to return the loan amount. Further this witness has admitted that, they have not issued any legal Notice nor filed any civil suit for recovery of the money. Further this witness has stated that her son Mahesha has not obtained money lending license for doing money lending.
20. Prosecution has examined PW.4. PW.4 in her evidence stated that, CW.2 is her elder brother, Mahesha is the son of CW.2, she know the accused, the house of accused is in front of the house of CW.2, accused are their distant relatives. Mahesha was doing finance business since 2-3 years earlier to his death. Mahesha and accused No.1 were having financial transactions, accused No.1 for the marriage of her daughter has taken Rs.5 laksh from Mahesha and for repayment of the same, quarrel was going on between the accused and Mahesha and CW.2 was telling the same to her. On 09-03-2013 at 1.00 p.m., CW.2 called her on phone and told that Mahesha has taken poison and he has been admitted to Madhu Hospital and 23 S.C.337/2014 she came there and thereafter Mahesha has been shifted to Shanubhog Hospital and her brother told her that Mahesha went to the house of accused for asking repayment of loan and accused have abused him and Mahesha has taken poison in the house of accused and thereafter Mahesha died. The accused have instigated Mahesha for committing suicide. This witness is a hearsay witness and hearsay evidence is inadmissible. Further this witness has admitted that she has stated before the Police that Mahesha died on 11-03-2013 at 9.30 a.m. whereas death of Mahesha occurred on 10-03-2013 at 9.30 to 10.00 p.m. Further this witness has admitted that, she is not knowing whether earlier to the death of Mahesha what transactions accused were with Mahesha. Further this witness has admitted that she is not knowing how the relationship between the family of accused and complainant was there earlier to the death of Mahesha. Further this witness has stated that she came to know regarding the incident from CW.2 after the death of Mahesha, so her evidence will no way help the prosecution to prove the guilt of accused.
21. Prosecution examined PW.5. PW.5 in his evidence stated that CW.2 is his mother's brother, CW.3 is the wife of CW.2. Mahesha was doing finance business. On 09-03-2013 24 S.C.337/2014 quarrel took-place between Mahesha and accused No.1 for money transactions. On 09-03-2013, Mahesha has taken bedbug poison and he has been admitted to the Hospital and he died on 10-03-2013. Further this witness has stated that on 09-03-2013, Mahesha and accused No.1 talked in phone and on that day in the afternoon Mahesha has taken poison. This witness has given different version to that of prosecution case and his evidence no way helps the prosecution to prove the guilt of accused.
22. Prosecution examined PW.6. PW.6 in his evidence stated that on 10-03-2013, Police called him to Victoria Hospital and in the Victoria Hospital Mortuary dead body of Mahesha was there, Mahesha died due to consuming poison and Police have drawn Inquest Mahazar there as per Ex.P5 and obtained his signature. In the present case, accused have not disputed the death of Mahesha. It is the specific case of the accused that, they have not abated Mahesha for taking poison and they are no way responsible for the death of Mahesha.
23. Prosecution examined PW.7. PW.7 in his evidence stated that, since November-2008 he is working as ASI at K.P.Agrahara Police Station. On 11-03-2013 at 7.45 p.m., when he was in the Police Station, CW.1 came to the Police 25 S.C.337/2014 Station and given written complaint and he registered the same in UDR No.7/2013 and submitted FIR to Tahasildar, Bengaluru North. Thereafter, he went to Victoria Hospital and drawn Inquest Mahazar of Mahesha from 8.30 to 10.00 a.m. On the same day, he recorded the statements of CW.3, 6, 7 at the time of Inquest Mahazar. Thereafter, he has handed-over the dead body for Postmortem to the Medical Officer and after Postmortem he has handed-over the dead body to the relatives of Mahesha and he has sent the Inquest Mahazar to the Tahasildar, Bengaluru North. This witness has been cross- examined by the counsel for the accused and in the cross- examination this witness has admitted that after he has registered the case in UDR No.7/2013, he has not went to the spot and he has not drawn Spot Mahazar. Further this witness has stated that, he has not given any intimation to Tahasildar, North Bengaluru for carrying out Inquest Mahazar. Further this witness has admitted that, at the time of Inquest Mahazar, mother father and brother of deceased were present. Further this witness has stated that, CW.3 has given statement before him and wherein she has stated that her son has taken poison in her house. Further this witness has stated that in the Inquest Mahazar he has stated as under;
26 S.C.337/2014
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24. The evidence of this witness clearly goes to show that at the time of drawing Inquest Mahazar, father mother and brother were present and they have stated before this witness that they are not having any suspicion regarding any one regarding consuming of poison by Mahesha. Further at the time of Inquest Mahazar, CW.3 has given statement and wherein she has stated that, her son has consumed poison in her house whereas CW.3 in her statement given before the Investigating Officer and evidence given before the court has stated that her son has consumed poison in the house of accused and accused has given the poison to her son which is contrary to the statement given by CW.3 before this witness and the said contradiction is material one which goes to the root of the case.
25. Prosecution has examined PW.8. PW.8 is the WPC who has taken the articles seized in this case to FSL and handed-over the same.
26. Prosecution has examined PW.9. PW.9 in his evidence stated that since 30-10-2009 he is working as Asst. Professor at Victoria Hospital. On 11-03-2013 as per the request of K.P.Agrahara Police, he has conducted Postmortem 27 S.C.337/2014 examination of the dead body of one Mahesha on the same day between 11.00 to 11.45 a.m. The length of dead body is 173 cms moderately built and nourished rigor martis present all over the body. Postmortem staining present over the back. The body blood tinged forth present around the nostrils. Injection mark present over the back of both the hands. On internal examination of skull and brain, they were intact. Chest wall intact. Lungs congested and edematous and cut section exudes fourthy blood. Stomach content about 50 ml of brown coloured fluid. Smell peculiar. Mucosa source conjunction. The kidneys are intact. He has preserved blood and viscera for chemical examination. I reserved cause of death pending for the report of chemical analysis. On 08-10-2013 he has received FSL opinion through K.P.Agrahara Police Station and he has given final opinion stating that death caused due to respiratory failure as a result of consumption of substance containing pyrathyroid insecticide compound and identified the Report as Ex.P7. Accused have not disputed the death of deceased due to consuming poison. It is the case of accused that they are no way responsible for the death of deceased.
27. Prosecution examined PW.10. PW.10 in his evidence stated that, since 2011 till 2015 he worked as 28 S.C.337/2014 Scientific Officer, FSL, Bengaluru. In the month of August- 2013, he was on OOD in FSL, Bengaluru and worked as in- charge Scientific Officer at Bengaluru FSL office. On 17-05- 2013, he received 4 articles from the reception of his office which were received from K.P.Agrahara Police Station in UDR No.7/2013. The seal of the said articles were intact and tallying with the sample seal. The Articles are; 1) Stomach and it contains portion of small intestine, 2) Portion of Liver and kidney, 3) Blood, 4) Saturated solution of Sodium Chloride as preservative. He examined the articles as per the methods of analysis mentioned in his Report. The colour test and TLC methods have responded for the presence of Pyrethroid insecticide in Article No.1, 2 and 3. The above tests responded negative in Article No.4. Accordingly, he has issued Ex.P8- Report.
28. Prosecution examined PW.11 and PW.11 is the Investigating Officer and he in his evidence stated that, in the year 2013 he was working as Police Sub-Inspector at K.P.Agrahara Police Station. On 01-04-2013 at 6.30 p.m., complainant came to the Police Station and given written complaint and he registered the same in Crime No.97/2013 and submitted FIR to the court. On 02-04-2013 he went to the 29 S.C.337/2014 spot, called CW.8 and 9-Panchas and drawn Mahazar on the spot shown by complainant. On 07-04-2013 he has recorded the statements of CW.2, 3, 4 and 5. On 07-04-2013, he has sent the articles seized through WPC of his Police Station to FSL for examination. On 27-05-2013 he has arrested accused No.2 and 3 and released on bail. On 17-06-2013, accused No.1 was present before him in the Police Station along with the copy of anticipatory bail granted by the Hon'ble High Court of Karnataka, he has arrested him and released on bail. He has included UDR No.7/2013 and thereafter filed charge-sheet. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that in Ex.P4-UDR complaint, it is no where mentioned that someone has instigated the deceased Mahesha for committing suicide. Further this witness has admitted that CW.3 has given statement at the time of Inquest Mahazar and wherein she has stated that Mahesha has consumed poison in her house. Further this witness has admitted that, in Ex.P5-Mahazar at Column No.13(a), it is recited that the family members of deceased are not having suspicion on anyone regarding the death of Mahesha by taking poison.
30 S.C.337/2014
29. Further this witness has admitted that, in Inquest Mahazar which is at Ex.P5, it is recited that Mahesha has taken poison on 09-03-2013 at 3.00 p.m. in the house. Further this witness has admitted that, in Ex.P5 at Column No.17 Para-1 it is recited that;
"Earlier to the death, Mahesha was depressed and he was not talking with his family members."
30. Further this witness has admitted that there are so many contradictions in the statements given by CW.2 to 5 before him and given before PW.7 at the time of drawing Inquest Mahazar. Further this witness has admitted that, he has not collected the call details regarding the Mobile number of deceased and accused No.1 mentioned in Ex.P1. Further this witness has admitted that, he has not recorded the statement of sister of deceased Mala, whose name is recited in Ex.P1. Further this witness has admitted that, he has not collected any document to show that the accused have obtained loan from the deceased and his family members.
31. It is the specific case of the accused that, they have not committed any offence as alleged against them. The deceased-Mahesha has availed loan from so many other persons and used the same for his bad habits and as his 31 S.C.337/2014 creditors were pressing him for repayment of the loan, he has taken poison and died. The complainant and his family members afterthought have concocted a false story and lodged false complaint against them only in order to gain wrongfully from them and harass them. In the present case, there is delay of 20 days on the part of the complainant in lodging the complaint and the said delay is not explained properly. Further immediately after the death of Mahesha, complainant has lodged complaint as per Ex.P4 and the same is registered in UDR No.7/2013 and in Ex.P4 complainant no where stated who is the cause for taking poison by deceased-Mahesha. In Ex.P4, it is only recited that due to financial matters Mahesha has taken poison, complainant in his evidence stated that he was unaware regarding the abatement made by the accused persons to Mahesha at the time of lodging Ex.P4. After the death of Mahesha, his mother was shocked and she was unconscious and after return of the conscious, his mother has narrated the facts to him and he has lodged complaint as per Ex.P1, whereas mother of the complainant in her evidence stated that on the next date of the death of Mahesha, Inquest was drawn at Victoria Hospital and she was present and she has given statement before the Investigating Officer which is 32 S.C.337/2014 contrary to the evidence of complainant. Further mother of the complainant has stated that, in the statement given by him at Victoria Hospital at the time of drawing Inquest Mahazar, she has not stated regarding the abatement made by the accused persons to deceased-Mahesha for committing suicide.
32. Further in the present case, prosecution has got marked Ex.P5-Inquest Mahazar and wherein it is clearly recited that the relatives of deceased were not suspecting anyone behind taking poison by Mahesha. Further it is the specific case of prosecution that, Mahesha has taken poison in the house of accused persons, whereas Ex.P5-Inquest Mahazar clearly goes to show that the relatives of the deceased have given statement before the Investigating Officer who registered the case in UDR No.7/2013 and wherein they have stated that Mahesha has taken poison in their house itself, which is contrary to the prosecution case and the said contradiction is material one. Further delay caused in the present case is abnormal one and the same is not explained, so delay creates suspicion regarding the incident. Further complainant himself has admitted that he, his family members have discussed and thereafter has lodged the complaint as per Ex.P1 and the said fact clearly goes to show that, after making discussion among 33 S.C.337/2014 the family members the complainant and his family members have lodged complaint against the accused persons and that his afterthought. If really the accused persons are abated the deceased for committing the suicide, the complainant ought to have stated in Ex.P4 itself regarding the abatement of suicide committed by the accused persons to the deceased. Furhter in the present case, complainant and his parents have admitted that, they are not having any documentary evidence to show that deceased was doing finance business. Further the complainant and his parents have admitted that they are not having any documentary evidence to show that the deceased and mother of the deceased have advanced loan of Rs.5 lakhs to the accused No.1 for her daughter's marriage. The amount of Rs.5 lakhs is not a small amount and normally nobody will give huge amount of Rs.5 lakhs without availing any document. In the present case, it is brought on record on behalf of the accused during the cross-examination of prosecution witnesses that financial position of the accused persons is better than the complainant and his family members. Prosecution witnesses have admitted that, accused No.2 is having 3-4 houses at Bengaluru and he has given the said house on rental basis and he is getting huge rent. The complainant and his parents have 34 S.C.337/2014 stated that, except the income of complainant and his father, there is no other income to their family during the lifetime of Mahesha itself and that goes to show that the Mahesha was not earning anything and if was having any earning, the complainant ought to have stated the same. Complainant has stated that he is doing work at Garments and getting Rs.10,000/- and his father is working as a Watchmen and he is getting hardly Rs.5,000 to Rs.6,000/- p.m. and if both income of complainant and his father is sufficient to maintain their family itself, Rs.5 lakhs is a huge amount and prosecution has not produced any record to show that complainant and his family members have kept Rs.5 lakhs for the marriage of their daughter Mala. Further in the present case, Investigating Officer has not recorded the statements of said Mala for whose marriage according to the case of prosecution Rs.5 lakhs has been kept by the family members of the complainant. Further in Ex.P1-complaint, it is recited that deceased and accused No.1 were talked on mobile phone for long time on the alleged date of taking poison by the deceased-Mahesha, Investigating Officer has not collected the call details of the Cell Phone, further Investigating Officer has not given any explanation why he has not done so. The learned counsel for the accused has 35 S.C.337/2014 relied upon citation reported in 1995 Cri.L.J.893 (Case:
Vedprakash Bhaji Vs. State of M.P.), wherein the lordship of Hon'ble Madhya Pradesh High Court has held as under;
"Where the prosecution case prima- facie revealed that the accused persons intimidated and goaded the deceased that if he does not repay the loan advanced to him, he will have to face with dire consequences and immediately thereafter he committed suicide, it could not be said that the accused persons provoked, incited, urged or encouraged the deceased to commit suicide."
33. Further learned counsel for the accused has relied upon the order passed by our own Hon'ble High Court in Crl.R.P.581/2014 dated 08-09-2014 (Case: Smt.Gayathri Vs. State of Karnataka), wherein the lordship of our own Hon'ble High Court held as under;
"When debtor has refused to repay the money to the creditor and said that they will not repay the amount, that itself will not comes under the purview of abatement to commit suicide."
34. In the present case in hand also prosecution has not produced any documentary evidence except the interested oral testimony of complainant and his parents which has been denied and disputed by the accused to show that accused No.1 has availed loan of Rs.5 lakhs for her daughter's marriage from the family of the complainant. The accused have denied that 36 S.C.337/2014 deceased and his mother have called them to their house and asked for repayment, accused have denied that they have taken any money from the family of the complainant. Even for the sake of arguments, it is presumed that accused No.1 has availed the loan and not repaid the same, the course upon for the deceased and his family members is to give notice and file suit for recovery of money and if the accused have stated that they will not repay the amount, that itself will not come in purview of abatement to commit suicide under Sec.306 of I.P.C. in view of the above referred citation of our own Hon'ble High Court and Hon'ble High Court of Madhya Pradesh, there are material contradictions in the evidence of prosecution witnesses and the said contradictions goes to the root of the case and creates suspicion regarding the incident. The evidence of PW.1 to 9 and Ex.P1 to 9, Ex.D1 and 2 will not prove the guilt of accused beyond reasonable doubt. Looking from any angle, prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. As per the well settled principle of criminal law, benefit of doubt goes to accused. Hence, for the above discussion, I answer point No.1 in the NEGATIVE.
37 S.C.337/2014
35. POINT NO.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C. accused No.1-Smt.Suma, accused No.2-Mahadeva and accused No.3-Smt.Sharadamma are acquitted for the offence punishable under Sec.306 r/w 34 of I.P.C.
Bail bonds of the accused stands cancelled forthwith.
(Dictated to the Judgment Writer, transcript thereof is corrected and then pronounced by me in the open court, on this the 14th day of September 2015).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Purushotham CW.1 27-10-2014
PW.2 Ramakrishna CW.2 27-10-2014
PW.3 Gowramma CW.3 27-10-2014
PW.4 Mahalakshmi CW.4 13-11-2014
PW.5 Ravichandra CW.6 26-03-2015
PW.6 Siddu CW.10 26-03-2015
PW.7 Shivakumaraiah CW.13 05-05-2013
PW.8 Jayaprada CW.14 05-05-2013
38 S.C.337/2014
PW.9 Dr.Dilip Kumar CW.15 15-06-2015
PW.10 Dr.M.D.Gowtham CW.17 08-07-2015
PW.11 Arun Kumar H.B. CW.16 08-07-2015
Documents marked for the prosecution:
Ex.P1 Complaint PW.1 27-10-2014
Ex.P1(a) Signature of PW.1 " "
Ex.P2 Spot Mahazar " "
Ex.P2(a) Signature of PW.1 " "
Ex.P3 Portion of 161 statement of PW.2 27-10-2014
PW.2
Ex.P4 UDR Complaint PW.1 08-12-2014
Ex.P5 UDR Inquest Report PW.6 26-03-2015
Ex.P5(a) Signature of PW.6 " "
Ex.P6 UDR FIR PW.7 05-05-2015
Ex.P6(a) Signature of PW.7 " "
Ex.P7 Postmortem Report PW.8 15-06-2015
Ex.P7(a) Signature of PW.8 " "
Ex.P7(b) Report " "
Ex.P7(b1) Signature " "
Ex.P8 FSL Report PW.10 08-07-2015
Ex.P8(a) Signature of PW.10 " "
Ex.P9 FIR " "
Material objects marked for the prosecution:
NIL Witness examined and material objects marked for the accused:
NIL 39 S.C.337/2014 Documents marked for the accused:
Ex.D1 Report submitted to Medical PW.8 15-06-2015
Officer along with the dead
body for carrying out the
Postmortem
Ex.D2 NCR Receipts PW.11 03-08-2015
LXVIII Addl. City Civil and
Sessions Judge, Bengaluru City.